11:33 am

Tue October 1, 2013

DOJ Voting Lawsuit: Absurd Or Critical?

I'm Michel Martin and this is TELL ME MORE from NPR News. My thanks to Celeste Headlee for sitting in for me on short notice. So today, the country woke up to the shutdown of the federal government. We've been hearing from you about how this is affecting you and your budgets and your families. We'll hear what you've been telling us and we'll hear from two of the business reporters we turn to often to find out what they're hearing about the long and short-term impact on the country. That's in just a few minutes.

But first, we want to take another look at voting rights in this country. The Justice Department is suing North Carolina over new restrictions in voting procedures that the state adopted shortly after the Supreme Court invalidated parts of the Voting Rights Act back in June. Now the provisions that were struck down by the court required states with a history of discrimination to seek approval from the federal government before changing its voting laws. The Justice Department is now targeting four provisions of the new North Carolina law, including ones that cut back on early voting days and that require people to show government-issued photo IDs to cast their ballots. In remarks on Monday, Attorney General Eric Holder said those provisions are discriminatory.

(SOUNDBITE OF SPEECH)

ATTORNEY GENERAL ERIC HOLDER: Allowing limits on voting rights that disproportionately exclude minority voters would be inconsistent with our ideals as a nation, and it would not be in keeping with the proud tradition of democracy that North Carolina has built in recent years.

MARTIN: We wanted to hear different perspectives on this. So once again, we've called Spencer Overton. He is a professor of law at George Washington University. Also joining us once again is Hans von Spakovsky. He is a senior legal fellow at the Heritage Foundation. That's a conservative think tank. Both of them previously served in the Justice Department in two different administrations. Welcome back to you both. Thank you for joining us once again.

SPENCER OVERTON: Thanks for having me.

VON SPAKOVSKY: Thanks.

MARTIN: So, Spencer Overton, start with us - start with you - and tell us what provisions of the North Carolina law that Department of Justice is specifically addressing and why.

OVERTON: Well, just days after the U.S. Supreme Court rolled back voting rights protections, Michel, the North Carolina legislature made several changes that made it harder to vote. They cut back early voting days. They eliminated a process that lets citizens register when they go to vote, and they erected one of the most restrictive ID requirements nationwide. Another piece is that they changed some of the provisional ballot ruling so that when you cast a ballot outside of your precinct, it is not counted.

Now these new voting rules harm voters of all backgrounds, but they disproportionately affect African-Americans. African-Americans make up 23 percent of registered voters in North Carolina, but they made up 29 percent of early voters in 2012, 34 percent of voters without state-issued ID, and 41 percent of voters who use same-day registration. The Justice Department brought suit to stop these changes and to require that North Carolina pre-clear future changes with a federal court.

MARTIN: Well, what standard of proof does the Justice Department have to offer?

OVERTON: Right. Well, it's actually Section 2 claim of the voting rights, which was not struck down or rolled back by the Supreme Court. So it focuses on the totality of the circumstances, and they look at a variety of factors, including history of discrimination, racial appeals made by politicians. So it's not a straight standard. It's also a results test rather than an intent test. However, in order to get North Carolina covered by preclearance again, DOJ does have to show discriminatory intent.

MARTIN: Hans, what's your perspective on this?

SPAKOVSKY: Well, I have to tell you, the attorney general said that what North Carolina did defied common sense, but I actually - I think its lawsuit defies common sense. And this idea that all these measures disproportionately affect minorities is simply not true. I mean, to tell you how bizarre the lawsuit is, for example, they're saying that it's racially discriminatory for North Carolina to require people to vote in their assigned neighborhood precinct. Now that's the rule all over the country, and yet, somehow that's discriminatory...

MARTIN: But isn't that what provisional ballots are for - people move in a period of time or something. Is that...

SPAKOVSKY: Provisional ballots are intended to let you vote if, for example, a mistake's been made and your name isn't on the list. But it does not require states to allow you to vote outside of your assigned precinct. In fact, this issue was litigated back in 2004. The Democratic party filed suits all over the country saying that a different federal law required that the courts said no. The other thing that's bizarre is, look, North Carolina now will have 10 days of early voting.

MARTIN: As opposed to?

SPAKOVSKY: As opposed to, I think it was, like, 17 before - but the same number of hours. There are many states around the country - at least 18 - that don't have early voting at all. Early voting is a new phenomenon. And yet, I guess the attorney general is saying that all the states that don't allow early voting but require you to vote on the first - you know, second Tuesday in November - the day that is set for national elections - you're somehow racially discriminating. Well, that's just foolish.

MARTIN: What about the government ID issue, which is the one that many people will have heard about because this is the one that was extensively - there was a lot of discussion about it...

SPAKOVSKY: Right. Right.

MARTIN: ...Leading up to the most recent federal elections. And the argument that a number of people have made against this - I mean, you know - the argument for it is this is common sense. I mean, you can't buy Sudafed without a government-issued ID.

SPAKOVSKY: Right. Right.

MARTIN: The argument against it is that voting is too important, and that a number of these rural counties - people who are senior citizens, people who don't have transportation - are being disenfranchised by this requirement because North Carolina did not give them sufficient other opportunities to get those IDs.

SPAKOVSKY: OK, well.

MARTIN: And your response to that?

SPAKOVSKY: That's simply not true. The law doesn't even take effect for three years. And we know that it's not going to have discriminatory effects. How do we know that? Because their law is almost exactly the same as Georgia's Voter ID law, which was passed now seven years ago - eight years ago. It's been in place for seven years and none of the discriminatory effects everybody keeps predicting happened in Georgia. In fact, the turnout, for example, of African-American voters went up. Last week, I actually did an article where I went and I took the witnesses that the ACLU produced in that case seven years ago, all of whom said, I'll never be able to vote, checked their voting records. They've all been voting in election after election after election.

MARTIN: If you're just joining us, we're talking about the Justice Department's suit against North Carolina over its recently passed Voter's ID laws - laws that were passed after the Supreme Court invalidated parts of the Voting Rights Act this past June. Our guests are Professor Spencer Overton of George Washington University. Speaking just now was Hans von Spakovsky of the Heritage Foundation. They both previously served in Justice Departments in different administrations. Spencer.

OVERTON: Yeah, integrity is very important, and the problem is not having an identification process. The problem is the restrictive law that North Carolina passed. It's among the most restrictive in the nation.

MARTIN: What specifically in your view makes it among the most restrictive?

OVERTON: Well, the fact that it does not allow student photo IDs. It does not allow public employee IDs. It does not allow photo IDs issued by public assistance agencies. So if you compare it, there are only about four states that have similar IDs across the country. And based on the existing data, for every half million ballots cast in North Carolina, the new ID law will stop more than 17,000 legitimate voters. But the supporters can't prove that it will stop one fraudulent voter.

MARTIN: Well, wait, wait. How is this different from, say, Rhode Island's law...

OVERTON: Yeah.

MARTIN: ...Which also requires a government-issued ID...

OVERTON: Yeah.

MARTIN: ...But which the Department of Justice hasn't challenged?

OVERTON: Rhode Island, if you don't have a photo ID, you can sign an affidavit and still vote, right? Here, if you don't have an ID and you don't go back and show an ID within a certain number of days, your vote's not going to count. And again, this is not just about ID, which can seem partisan, it's about a series of hurdles. North Carolina is not in the mainstream. No other state has, at one time, erected so many barriers that cumulatively make it harder to vote. North Carolina is like the greatest hits of voter suppression.

MARTIN: Hans von Spakovsky, can we ask you about this question about fraud? I mean, these measures have been - these measures have been advanced for the purpose of ensuring that the franchise is valid...

SPAKOVSKY: Right.

MARTIN: ...By limiting opportunities for voter fraud. What evidence does the state have that this kind of fraud was in fact occurring...

SPAKOVSKY: Well...

MARTIN: ...And how will these measures address that concern?

SPAKOVSKY: Well, in fact, a citizens organization in North Carolina recently got the results of a Freedom of Information Act request that they served on the North Carolina State Board of Elections. That report showed that over the last four years, they had referred - that is the board - almost 500 cases of voter fraud to local prosecutors, including, by the way, several cases of impersonation fraud, which voter ID can stop, also cases of voter registration fraud, which also could be stopped by voter ID. And, you know, look, Spencer keeps saying it's going to keep people from voting. That's not what happened in Georgia. Georgia has almost the same number of registered voters as North Carolina and a larger African-American population.

MARTIN: Let me ask you this question. We have about two minutes left, so I just want to ask about this 'cause I've asked this before, but I feel I need to ask this again. I mean, Spencer, you served on a bipartisan commission on Federal Election Reform after the 2000 election, which was of course very hard-fought, ended in a way that, you know, to this day, some people are disgruntled by. And that report found that that bipartisan commission, split right down the middle, said that there is neither as much election fraud as many people believe, nor is there as much voter suppression as some people believe. That in fact, all of this sort of framework is designed to address people's impressions, not reality. What's your response to that?

OVERTON: I think that that - that there is some merit in there, although I think that there are a lot of people who don't have ID. I think it's probably only five or 10 percent, but it's a significant number. But the problem here is we don't want to be distracted. This isn't a fraud debate. This is a debate about voter suppression, and not just at the state level. The local level - that's the big issue here. If you look at 85 percent of the Justice Department objections, those were changes at local elections there. So, for example, in Pitt County in 2011, they eliminated one of the two African-American members for the school board. There are changes that happened just after this decision in Shelby County - Elizabeth City State University - historically black college, where a student was challenged for - in terms of running - for city council.

MARTIN: Hans von Spakovsky deserves a chance to respond. Your response to my question, if you don't mind, which is to say that the argument is that both of these scenarios are in fact exaggerated. And what's your point? What is your perspective on that?

SPAKOVSKY: Well, I don't think I have exaggerated the things that I've written about voter fraud. I have a whole book that details cases of it, but what certainly has been exaggerated is the idea that it suppresses the vote. We know that's not true. The data from actual states with voter ID shows that that simply isn't true. And this idea that huge numbers of people don't have ID - it's just not the case.

MARTIN: Well, we have to leave it there for now. Hans von Spakovsky is a senior legal fellow at the Heritage Foundation. Spencer Overton is a professor of law at George Washington University. They were both kind enough to join us once again in our Washington, D.C. studios. Gentlemen, thank you both so much for speaking with us. Transcript provided by NPR, Copyright NPR.